Opinion
March 10, 1989
Appeal from the Monroe County Court, Egan, J.
Present — Dillon, P.J., Callahan, Boomer, Green and Davis, JJ.
Judgment unanimously affirmed. Memorandum: We have examined defendant's claims on appeal and find them to be without merit. The evidence at the suppression hearing sufficiently demonstrated that defendant was not interrogated in violation of his right to counsel. Additionally, the evidence that complainant's jaw was swollen and caused him pain for two weeks was sufficient to establish "physical injury" (see, Penal Law § 10.00; People v. James, 133 A.D.2d 507, 509, lv denied 70 N.Y.2d 933; People v. Goico, 122 A.D.2d 576). Defendant was not entitled to have the charge of criminal facilitation in the fourth degree (Penal Law § 115.00) submitted to the jury as a lesser included offense (see, People v. Palmer, 116 A.D.2d 767, 769, lv denied 67 N.Y.2d 1055; People v. Chavis, 99 A.D.2d 584, 586), or as an unindicted charge. Finally, the court did not abuse its discretion in fashioning a Sandoval ruling (People v Sandoval, 34 N.Y.2d 371) or in sentencing defendant as a second felony offender to concurrent terms of 7 1/2 to 15 years on a class B and two class C felonies.